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*ssue) Hel+) atio) Prohi,ition un+er -ection ".' Article /** +oes not apply to appoint0ents to 1ill a vacancy in the -C or to other appoint0ents to the Ju+iciary T+o constitutional provisions are seemingly in conflict. The first, !ection 1/, &rticle '(( #.0ecutive 1epartment$, provides5
Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments , except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, !ection " #1$, &rticle '((( #Judicial 1epartment$, states5 Section 4. (1). The upreme !ourt shall be composed of a !hief "ustice and fourteen Associate "ustices. #t may sit en banc or in its discretion, in division of three, five, or seven $embers. Any vacancy shall be filled within ninety days from the occurrence thereof. (n the consolidated petitions, the petitioners, +ith the e0ception of !oriano, Tolentino and (nting, su*mit that the incum*ent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohi*ition against presidential appointments under !ection 1/, &rticle '(( does not e0tend to appointments in the Judiciary. The Court agrees +ith the su*mission. %irst. &s can *e seen, Article /** is devoted to the .0ecutive 1epartment, and, among others, it lists the po+ers vested *y the Constitution in the President. The presi+ential po2er o1 appoint0ent is dealt +ith in -ections "3' ". an+ "4 of the &rticle. Article /*** is dedicated to the Judicial 1epartment and defines the duties and 6ualifications of Mem*ers of the !C, among others. -ection 35"6 an+ -ection # of this &rticle are the provisions specifically providing for the appointment of !C Justices. (n particular, -ection # states that the appointment of !C Justices can only *e made *y the President upon the su*mission of a list of at least three nominees *y the J-C7 -ection 35"6 of the &rticle mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy. Ha+ the 1ra0ers inten+e+ to e7ten+ the prohi,ition containe+ in -ection ".' Article /** to the appoint0ent o1 Me0,ers o1 the -C' they coul+ have e7plicitly +one so . They could not have ignored the meticulous ordering of the provisions. They +ould have easily and surely +ritten the prohi*ition made e0plicit in !ection 1/, &rticle '(( as *eing e6ually applica*le to the appointment of Mem*ers of the !C in &rticle '((( itself, most li2ely in !ection " #1$, &rticle '(((. That such specification +as not done only reveals that the prohi*ition against the President or &cting President ma2ing appointments +ithin t+o months *efore the ne0t presidential elections and up to the end of the President8s or &cting President8s term does not refer to the Mem*ers of the !C. <hough &alen'uela came to hold that the prohi*ition covered even 3udicial appointments, it cannot *e disputed that the &alen'uela dictum did not firmly rest on the deli*erations of the Constitutional Commission. There*y, the confirmation made to the J-C *y then !enior &ssociate Justice 9loren: 1. ;egalado of this Court, a former mem*er of the Constitutional Commission, a*out the prohi*ition not *eing intended to apply to the appointments to the Judiciary, +hich confirmation &alen'uela even e0pressly mentioned, should prevail. The records disclosed the e0press intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner .ulogio <erum, )a command =to the President> to fill up any vacancy therein +ithin %0 days from its occurrence,, +hich even &alen'uela conceded. The e0changes during deli*erations of the Constitutional Commission on ?cto*er @,
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transfer of authority to the incoming President., !aid the Court5 )8he 1illing up o1 vacancies in i0portant positions' i1 1e2' an+ so space+ as to a11or+ so0e assurance o1 +eli,erate action an+ care1ul consi+eration o1 the nee+ 1or the appoint0ent an+ appointee9s :uali1ications 0ay un+ou,te+ly ,e per0itte+. But the issuance o1 ;.$ appoint0ents in one night an+ the planne+ in+uction o1 al0ost all o1 the0 in a 1e2 hours ,e1ore the inauguration o1 the ne2 Presi+ent 0ay' 2ith so0e reason' ,e regar+e+ ,y the latter as an a,use o1 Presi+ential prerogatives' the steps ta<en ,eing apparently a 0ere partisan e11ort to 1ill all vacant positions irrespective o1 1itness an+ other con+itions' an+ there,y to +eprive the ne2 a+0inistration o1 an opportunity to 0a<e the correspon+ing appoint0ents., &s indicated, the Court recogni:ed that there may +ell *e appointments to important positions +hich have to *e made even after the proclamation of the ne+ President. -uch appoint0ents' so long as they are =1e2 an+ so space+ as to a11or+ so0e assurance o1 +eli,erate action an+ care1ul consi+eration o1 the nee+ 1or the appoint0ent an+ the appointee>s :uali1ications'? can ,e 0a+e ,y the outgoing Presi+ent. &ccordingly, several appointments made *y President Farcia, +hich +ere sho+n to have *een +ell considered, +ere upheld. -ection ".' Article /** has a ,roa+er scope than the Aytona ruling. *t 0ay not unreasona,ly ,e +ee0e+ to conte0plate not only =0i+night? appoint0ents @ those 0a+e o,viously 1or partisan reasons as sho2n ,y their nu0,er an+ the ti0e o1 their 0a<ing @ ,ut also appoint0ents presu0e+ 0a+e 1or the purpose o1 in1luencing the outco0e o1 the Presi+ential election. ?n the other hand, the e0ception in the same !ection 1/ of &rticle '(( C allo+ing appointments to *e made during the period of the *an therein provided C is much narro+er than that recogni:ed in Aytona. The e0ception allo+s only the ma2ing of temporary appointments to executive positions +hen continued vacancies +ill prejudice public service or endanger public safety. ?*viously, the article greatly restricts the appointing po+er of the President during the period of the *an. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the PresidentGs po+er of appointment, it is this Court8s vie+ that, as a general proposition, in case of conflict, the former should yield to the latter. !urely, the prevention of voteB*uying and similar evils out+eighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can a*ide the period of the *an +hich, incidentally and as earlier pointed out, comes to e0ist only once in every si0 years. Moreover, those occurring in the lo+er courts can *e filled temporarily *y designation. -ut prohi*ited appointments are longBlasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their ma2ing is considered an election offense.
Fiven the *ac2ground and rationale for the prohi*ition in !ection 1/, &rticle '((, +e have no dou*t that the Constitutional Commission confined the prohi*ition to appointments made in the .0ecutive 1epartment. The framers did not need to e0tend the prohi*ition to appointments in the Judiciary, *ecause their esta*lishment of the J-C and their su*3ecting the nomination and screening of candidates for 3udicial positions to the unhurried and deli*erate prior process of the J-C ensured that there +ould no longer *e midnightappointments to the Judiciary. (f midnight appointments in the mold of Aytona +ere made in haste and +ith irregularities, or made *y an outgoing Chief .0ecutive in the last days of his administration out of a desire to su*vert the policies of the incoming President or for partisanship, the appointments to the Judiciary made after the esta*lishment of the J-C +ould not *e suffering from such defects *ecause of the J-C8s prior processing of candidates. (ndeed, it is a0iomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, *ecause the reason for the enactment must necessarily shed considera*le light on )the la+ of the statute,, i.e., the intent7 hence, the enactment should *e construed +ith reference to its intended scope and purpose, and the court should see2 to carry out this purpose rather than to defeat it. &lso, the intervention of the J-C eliminates the danger that appointments to the Judiciary can *e made for the purpose of *uying votes in a coming presidential election, or of satisfying partisan considerations. The e0perience from the time of the esta*lishment of the J-C sho+s that even candidates for 3udicial positions at any level *ac2ed *y people influential +ith the President could not al+ays *e assured of *eing recommended for the consideration of the President, *ecause they first had to undergo the vetting of the J-C and pass muster
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!ection " #H$, &rticle '(( re6uires the regular elections to *e held on the second Monday of May, letting the elections fall on May @, at the earliest, or May 1", at the latest. (f the regular presidential elections are held on May @, the period of the prohi*ition is 11/ days. (f such elections are held on May 1", the period of the prohi*ition is 10% days. .ither period of the prohi*ition is longer than the full mandatory %0Bday period to fill the vacancy in the !C. The result is that there are at least 1% occasions #i.e., the differencebetween the shortest possible period of the *an of 10% days and the %0Bday mandatory period for appointments$ in +hich the outgoing President +ould *e in no position to comply +ith the constitutional duty to fill up a vacancy in the !C. (t is safe to assume that the framers of the Constitution could not have intended such an a*surdity. (n fact, in their deli*erations on the mandatory period for the appointment of !C Justices under !ection " #1$, &rticle '(((, the framers neither discussed, nor mentioned, nor referred to the *an against midnight appointments under !ection 1/, &rticle '((, or its effects on the %0Bday period, or vice versa. They did not need to, *ecause they never intended !ection 1/, &rticle '(( to apply to a vacancy in the !C, or in any of the lo+er courts. eventh. &s a matter of fact, in an extreme case, +e can even raise a dou*t on +hether a J-C list is necessary at all for the President C any President C to appoint a CJ if the appointee is to come from the ran2s of the sitting 3ustices of the !C. The provision clearly refers to an appointee coming into the !upreme Court from the outside, that is, a nonB mem*er of the Court aspiring to *ecome one. (t spea2s of candidates for the !upreme Court, not of those +ho are already mem*ers or sitting 3ustices of the Court, all of +hom have previously *een vetted *y the J-C. 8he Ju+iciary Act o1 "#3A The posture has *een ta2en that no urgency e0ists for the President to appoint the successor of CJ Puno, considering that the Judiciary &ct of 1%"@ can still address the situation of having the ne0t President appoint the successor. -ection "% o1 the Ju+iciary Act o1 "#3A states5
-ection "%. Vacancy in Office of hief !ustice. J #n case of a vacancy in the office of !hief "ustice of the upreme !ourt or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate "ustice who is first in precedence, until such disability is removed, or another !hief "ustice is appointed and duly +ualified. This provision shall apply to every Associate "ustice who succeeds to the office of !hief "ustice.
The provision calls for an Acting CJ in the event of a vacancy in the office of the CJ, or in the event that the CJ is una*le to perform his duties and po+ers. (n either of such circumstances, the duties and po+ers of the office of the CJ shall devolve upon the &ssociate Justice +ho is first in precedence until a ne+ CJ is appointed or until the disa*ility is removed. Ee cannot agree +ith the posture. & revie+ of !ections "#1$ and % of &rticle '((( sho+s that the !C is composed of a CJ and 1" &ssociate Justices, +ho all shall *e appointed *y the President from a list of at least three nominees prepared *y the J-C for every
vacancy, +hich appointments re6uire no confirmation *y the Commission on &ppointments. Eith reference to the CJ, he or she is appointed *y the President as Chief Justice, and the appointment is never in an acting capacity. The e0press reference to a CJ a*hors the idea that the framers contemplated an Acting Chief Justice to head the mem*ership of the !C. ?ther+ise, they +ould have simply +ritten so in the Constitution. Conse6uently, to rely on !ection 12 of the Judiciary &ct of 1%"@ in order to forestall the imperative need to appoint the ne0t Chief Justice soonest is to defy the plain intent of the Constitution. 9or sure, the framers intended the position of CJto *e permanent, not one to *e occupied in an acting or temporary capacity. (n relation to the scheme of things under the present Constitution, !ection 12 of the Judiciary &ct of 1%"@ only responds to a rare situation in +hich the ne+ CJ is not yet appointed, or in +hich the incum*ent CJ is una*le to perform the duties and po+ers of the office. (t ought to *e remem*ered, ho+ever, that it +as enacted *ecause the CJ appointed under the 1%H/ Constitution +as su*3ect to the confirmation of the Commission on &ppointments, and the confirmation process might ta2e longer than e0pected. The appointment of the ne0t CJ *y the incum*ent President is prefera*le to having the &ssociate Justice +ho is first in precedence ta2e over. nder the Constitution, the heads of the <egislative and .0ecutive 1epartments are popularly elected, and +hoever are elected and proclaimed at once *ecome the leaders of their respective 1epartments. Do+ever, the lac2 of any appointed occupant of the office of CJ harms the independence of the Judiciary, *ecause the CJ is the head of the entire Judiciary. The CJ performs functions a*solutely significant to the life of the nation. Eith the entire !C *eing the Presidential
The distinction between a ministerial and discretionary act is well delineated. A #urely ministerial act or duty is one which an officer or tri$unal #erforms in a %iven state of facts, in a
#rescri$ed manner, in o$edience to the mandate of a le%al authority, without re%ard to or the e&ercise of his own 'ud%ment u#on the #ro#riety or im#ro#riety of the act done. #f the law im#oses a duty u#on a #u$lic officer and %ives him the ri%ht to decide how or when the duty shall $e #erformed, such duty is discretionary and not ministerial. The duty is ministerial only when the dischar%e of the same re(uires neither the e&ercise of official discretion or 'ud%ment.
&ccordingly, +e find no sufficient grounds to grant the petitions for mandamus and to issue a +rit of mandamus against the J-C. The actions for that purpose are premature, *ecause it is clear that the J-C still has until May 17, 2010, at the latest, +ithin +hich to su*mit the list of nominees to the President to fill the vacancy created *y the compulsory retirement of CJ Puno. Brit o1 prohi,ition +oes not lie against the JBC (n light of the foregoing dis6uisitions, the conclusion is inelucta*le that only the President can appoint the CJ.